DiLeo v. Lane et al

Filing 92

RULING AND ORDER granting 56 Defendants Gerry Lane Enterprises, Inc. and the Succession of Gerald R. Lane's Motion for Summary Judgment. Plaintiff Marc DiLeo's claims against Defendants Gerry Lane Enterprises, Inc. and Eric Lane are hereby DISMISSED with prejudice. Signed by Chief Judge Brian A. Jackson on 09/23/2014. (CGP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MARC DILEO

CIVIL ACTION

VERSUS
GERALD LANE, ET AL.

NO.: 12-00522-BAJ-SCR

RULING AND ORDER
Before the Court is Defendants Gerry Lane Enterprises, Inc. and the
Succession of Gerald R. Lane’s Motion for Summary Judgment (Doc. 56), filed
by Defendants Gerry Lane Enterprises, Inc. and Eric Lane1 (collectively “Defendants”),
seeking an order from this Court granting summary judgment, pursuant to Federal
Rule of Civil Procedure 56, and dismissing Plaintiff Marc DiLeo’s (“DiLeo”) claims.
DiLeo opposes the motion. (Doc. 63.) Defendants filed a reply memorandum. (Doc.
74.) Oral argument is not necessary. Jurisdiction is proper, pursuant to 28 U.S.C. §
1331. For the reasons stated herein, Defendants’ motion is GRANTED.

1

Defendant Eric Lane is named as a Defendant in his capacity as the Representative of the
Succession of Gerald R. Lane. (Doc. 47.)

I.

Background
A.

DiLeo’s First Amended Complaint2

DiLeo filed this employment discrimination lawsuit pursuant to Title VII of the
Civil rights Act of 1964, 42 U.S.C. § 2000, et seq. (“Title VII”), and the Louisiana
Employment Discrimination Law, La. R.S. § 23:301, et seq.3 DiLeo alleges that
Defendants discriminated against him on the basis of his national origin, race, and sex
and constructively discharged him from his sales associate position at Gerry Lane
Chevrolet in Baton Rouge, Louisiana. Specifically, DiLeo alleges that dealership
owner, Gerald R. Lane, created a hostile work environment in which DiLeo was
subjected to racial and ethnic slurs. DiLeo’s Complaint also alleges that Gerald R.
Lane’s actions amounted to intentional infliction of emotional distress. DiLeo further
alleges a claim for assault and battery, pursuant to La. Civ.Code art. 2315, and a claim
for unpaid wages under La. Rev. Stat. § 23:631, et seq.

2

DiLeo originally filed this lawsuit along with ten other current and former employees of Gerry
Lane Enterprises, Inc. (Doc. 1.) Subsequently, the Court issued an order requiring the Clerk of Court
to sever the claims into eleven separate lawsuits, and requiring each plaintiff to file an amended
complaint. (Doc. 4.) Accordingly, DiLeo filed his First Amended Complaint on September 11, 2012. (Doc.
6.)
3

A previous ruling by this Court indicated that DiLeo also asserted a claim under 42 U.S.C. §
1981. (Doc. 94,p. 1.) However, a review of DiLeo’s complaint reveals that he seeks damages under 42
U.S.C. § 1981(a) only, and did not allege a claim under 42 U.S.C. § 1981.
2

B.

Undisputed Facts4

•

Defendant Gerry Lane Enterprises operates as Gerry Lane Chevrolet, an
automobile dealership in Baton Rouge.

•

Prior to his May 2013 passing, Gerald R. Lane owned a majority interest in
Gerry Lane Enterprises.

•

Since 2008, Cedric Patton (African-American) has been responsible for the
operations of Gerry Lane Chevrolet.

•

During DiLeo’s employment, Reynold Ankeny (Caucasian) served as a Sales
Manager, reporting directly to Patton.

•

Sales Managers Ken Balthrop (African-American), Chad Bell (Caucasian) and
Cecil Overstreet (African-American) reported to Ankeny and directly supervised
the sales force.

•

The sales force typically comprises anywhere between twenty and thirty
individuals.

•

DiLeo’s father is Italian-American.

•

DiLeo’s mother is part German and part Native American.

•

DiLeo has never been to Italy, does not belong to any Italian-American
organizations and has never met a family member who was from Italy.

•

DiLeo worked for Gerry Lane Chevrolet for approximately three weeks as a
salesman in late summer 2011.

•

According to DiLeo, Gerry Lane Chevrolet sales manager Balthrop contacted
him in September 2011 and recruited him to come to Gerry Lane Chevrolet to
sell cars.

•

Balthrop offered employment to DiLeo without any other interviews for the
position.

4

In accordance with Rule 56.1 of the Local Rules of the United States District Court for the
Middle District of Louisiana, Defendants submitted a statement of undisputed material facts. (Doc. 561); L.R. 56.1. In opposition, DiLeo submitted a response to Defendants’ statement of undisputed material
facts. (Doc. 63-1); Fed.R.Civ.P. 56(c); L.R. 56.2. Accordingly, only certain material facts are deemed
admitted for purposes of this ruling and order. L.R. 56.2.
3

•

At the time, DiLeo had been out of work for approximately seven (7) months.

•

Sales representatives at Gerry Lane Enterprises must attend daily sales
meetings.

•

According to DiLeo, managers would sometimes yell in these meetings.

•

On one occasion, a manager yelled at DiLeo for being late.

•

Gerald R. Lane also spoke at the sales meetings attended by DiLeo.

•

In a sales meeting, Gerald R. Lane allegedly talked for a few minutes and then,
without any segue, interjected that: “and if y’all think I am a racist, well, you’re
damn right. I’ve earned the right to be.”

•

DiLeo also asserted that he heard Gerald R. Lane tell employees on a few
occasions not to congregate together on the job, because “if he wanted to see the
goddamn ghetto,” he would look at the neighborhood abutting the dealership
[Mall City].

•

He directed this comment to both Caucasian and African-American employees
alike.

•

When DiLeo replied “no,” in response to Gerald R. Lane’s inquiry regarding
whether DiLeo sold any vehicle, Gerald R. Lane allegedly told him “a runaway
slave could sell more cars than you, boy.”
C.

Defendants’ Motion for Summary Judgment

As to the instant motion, Defendants seek an order from this Court dismissing
DiLeo’s claims. Defendants argue that DiLeo cannot point to sufficient evidence to
establish his discrimination claims on the basis of his sex, national origin, or race.
Defendants further contend that DiLeo cannot point to sufficient evidence to establish
his constructive discharge, intentional infliction of emotional distress, assault and
battery, or unpaid wages claims.

Accordingly, Defendants argue that summary

judgment is warranted.
4

DiLeo concedes that he cannot point to sufficient evidence to establish his sexual
harassment, assault and battery, and unpaid wages claims. He argues, however, that
there are genuine disputes of material fact that preclude summary judgment in favor
of Defendants. Specifically, DiLeo contends that there are genuine disputes of material
fact related to his national origin and race discrimination claims, as well as his
constructive discharge and intentional infliction of emotional distress claims.
II.

Standard of Review
Pursuant to Federal Rule of Civil Procedure (“Rule”) 56, “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A party moving for summary judgment must inform the Court of the basis
for the motion and identify those portions of the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, that show that
there is no such genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
If the moving party carries its burden of proof under Rule 56, the opposing party
must direct the court’s attention to specific evidence in the record which demonstrates
that the non-moving party can satisfy a reasonable jury that it is entitled to a verdict
in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). This burden is
not satisfied by some metaphysical doubt as to alleged material facts, by unsworn and
unsubstantiated assertions, by conclusory allegations, or by a mere scintilla of
evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Rather, Rule
5

56 mandates that summary judgment be entered against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case
and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 323;
Liquid Air Corp., 37 F.3d at 1075.
In determining whether the movant is entitled to summary judgment, the court
views facts in the light most favorable to the non-movant and draws all reasonable
inferences in the non-movant’s favor. Coleman v. Houston Independent School District,
113 F.3d 528, 533 (5th Cir. 1997). The court may not evaluate the credibility of
witnesses, weigh the evidence, or resolve factual disputes. International Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502 U.S. 1059
(1992). However, if the evidence in the record is such that a reasonable jury, drawing
all inferences in favor of the non-moving party, could arrive at a verdict in that party’s
favor, the court must deny the motion for summary judgment. International Shortstop,
Inc., 939 F.2d at 1263.
III.

Analysis
As an initial matter, as noted above, DiLeo concedes that he cannot point to

sufficient evidence to establish his sexual harassment, assault and battery, and unpaid
wages claims. Accordingly, Defendants’ request that the Court dismiss DiLeo’s hostile
work environment claim on the basis of his sex, assault and battery claims, and unpaid
wages claim is GRANTED.

6

A.

DiLeo’s Federal and State Law Discrimination Claims
Against Individual Supervisors or Fellow Employees

In support of the motion, Defendants contend that DiLeo is precluded from
asserting federal or state law discrimination claims against individual supervisors.
Rather, relief under Title VII or the Louisiana Employment Discrimination Law is only
available against an employer. DiLeo failed to present any argument, or point to any
evidence, in opposition to Defendants’ argument.
It is well established that relief under Title VII is only available against an
employer, and not against an individual supervisor or fellow employee. Umoren v.
Plano Indep. Sch. Dist., 457 F. Appx. 422, 425 (5th Cir. 2012) (quoting Foley v. Univ.
of Houston Sys., 355 F.3d 333, 340 n. 8 (5th Cir. 2003)). It is also well established that
“[L]ouisiana’s antidiscrimination law provides no cause of action against individual
employees, only against employers.” Mitchell v. Tracer Construction Co., et al., 256 F.
Supp. 2d 520, 525 (M.D. La. 2003); Johnson v. Acosta, No. 10-1756, 2010 U.S. Dist.
LEXIS 109032, at *15 (E.D. La. Oct. 12, 2010) (“It is equally well established that
‘Louisiana’s antidiscrimination law provides no cause of action against individual
employees, only against employers.’”); see also La. R.S. 23:303(A).

Accordingly,

Defendants’ request that the Court dismiss DiLeo’s federal and state law
discrimination claims against Gerald R. Lane, or any other individual supervisor or
fellow employee, is GRANTED.

7

B.

DiLeo’s Hostile Work Environment Claim on the Basis of
His National Origin5

In order to survive summary judgment, DiLeo must present sufficient evidence
to establish that: (1) he belongs to a protected group; (2) he was subjected to unwelcome
harassment; (3) the harassment complained of was based on national origin; (4) the
harassment complained of affected a term, condition, or privilege of employment; (5)
the employer knew or should have known of the harassment in question and failed to
take prompt remedial action.6 Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)
(citations omitted). Here, Defendants contend that DiLeo cannot establish that the
harassment complained of affected a term, condition, or privilege of his employment.
In order for harassment to affect a term, condition, or privilege of employment,
it must be “‘sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 65 (1986)). For harassment to be sufficiently severe or pervasive to alter the
conditions of employment, the conduct complained of must be “both objectively and

5

Employment discrimination claims under Title VII and the Louisiana Employment
Discrimination Law are analyzed under the same standard. Turner v. Kan. City Southern Ry. Co., 675
F.3d 887, 891 (5th Cir. 2012) (the Louisiana Employment Discrimination Law requires the same
elements of proof as a Title VII hostile work environment claim); Knapper v. Hibernia Nat’l Bank, 49 So.
3d 898, 902 n.11 (La. Ct. App. 2010) (“Claims under the [Louisiana Employment Discrimination Law]
are subject to the same analysis as discrimination claims under federal Title VII of the Civil Rights Act
of 1964.”). Accordingly, DiLeo’s claims under Title VII and the Louisiana Employment Discrimination
Law shall be jointly addressed and analyzed.
6

However, where the harassment is allegedly committed by a supervisor with immediate
authority over the harassed employee, the plaintiff need only satisfy the first four elements of the prima
facie case. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001).
8

subjectively offensive, one that a reasonable person would find hostile or abusive, and
one that the victim in fact did perceive to be so.” Aryain v. Wal-Mart Stores of Tex. LP,
534 F.3d 473, 479 (5th Cir. 2008); see also Harris, 510 U.S. at 21-22. Thus, not only
must the victim perceive the environment as hostile, the conduct must also be such
that a reasonable person would find it to be hostile or abusive. Harris, 510 U.S. at 2122. To determine whether the victim’s work environment was objectively offensive,
courts consider the totality of the circumstances, including: (1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether it is physically threatening or
humiliating; (4) whether it interferes with an employee’s work performance. Id. at 23.
In opposition to the motion, DiLeo points to his deposition, in which he testified
about Gerald R. Lane’s use of the ethnic slur “dago.” According to DiLeo, Gerald R.
Lane referred to him as “dago” “at least four times.” (Doc. 63-4, p. 16.) However, a
review of DiLeo’s deposition reveals that he only identified four occasions during which
Gerald R. Lane uttered the word. (Doc. 63-4, pp. 16, 18-19, 21.) According to DiLeo,
Gerald R. Lane also referred to his coworker, Eric Angeletti, as “dago” in his presence.
(Doc. 63-4, pp. 21-22.) However, a review of DiLeo’s deposition reveals that he only
identified one occasion during which Gerald R. Lane referred to Angeletti as “dago.”
(Doc. 63-4, pp. 21-23.)
DiLeo failed to present evidence that Gerald R. Lane’s use of the ethnic slur
occurred frequently or was physically threatening or humiliating. Further, DiLeo
failed to cite, nor has the Court identified, binding case law to support the conclusion
that Gerald R. Lane’s use of the word “dago” on four or five occasions over the course
9

of twenty-one days was sufficiently severe. Accordingly, each of the factors in the
totality of the circumstances test weigh against a finding that the harassment
complained of was objectively offensive.
To be sure, Gerald R. Lane’s use of the ethnic slur “dago” is repulsive. However,
Gerald R. Lane’s use of the word on four or five occasions “pale[s] in comparison, both
in severity and frequency” to the kinds of verbal harassment that the Fifth Circuit has
held to support a Title VII hostile work environment claim.

Turner v. Baylor

Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007); compare Walker v. Thompson,
214 F.3d 615, 619-22 (5th Cir. 2000) (holding that a hostile work environment claim
survived summary judgment where evidence demonstrated years of inflammatory
racial epithets, including “nigger” and “little black monkey”), with Johnson v. TCB
Constr. Co., 334 F. Appx. 666, 671 (5th Cir. 2009) (finding insufficient evidence to
establish a racially hostile work environment where a supervisor’s comment that the
plaintiff was just “like a damn nigger” was isolated; there was no evidence of the
objective effect of that comment on the plaintiff's work performance; and although
there was evidence that the supervisor frequently used the term “nigger,” those other
comments were not uttered in the plaintiff’s presence and there was no evidence that
they affected the plaintiff’s job).
Further, DiLeo has failed to offer sufficient evidence concerning the objective
effect of the harassment complained of on his “work performance.” Harris, 510 U.S.
at 23.

10

Even when a hostile environment is shown, a plaintiff must establish
that the workplace environment had the effect of altering the terms and
conditions of his employment. Central to the court’s inquiry into a hostile
environment claim is whether the alleged harasser’s actions have
undermined the victim’s workplace competence, discouraged him from
remaining on the job, or kept him from advancing in his career. Title VII
is intended only to prohibit and prevent conduct “that is so severe and
pervasive that it destroys a protected class member’s opportunity to
succeed in the workplace.”
Sparks v. Alrod Enters., No. 3:00-CV-2110-L, 2003 U.S. Dist. LEXIS 7095, at *17 (N.D.
Tex. Apr. 28, 2003) (citing cases).
As such, the Court finds that DiLeo has failed to present sufficient evidence to
create a dispute of material fact as to whether the harassment complained of was
severe or pervasive enough to affect a term, condition, or privilege of his employment.
Indeed, DiLeo failed to cite, nor has the Court identified, any binding case law that
requires a different conclusion. Accordingly, Defendants’ request that the Court
dismiss DiLeo’s hostile work environment claim on the basis of his national origin is
GRANTED.
C.

DiLeo’s Hostile Work Environment Claim on the Basis of
His Race

In order to survive summary judgment, DiLeo must present sufficient evidence
to establish that: (1) he belongs to a protected group; (2) he was subjected to unwelcome
harassment; (3) the harassment complained of was based on race; (4) the harassment
complained of affected a term, condition, or privilege of employment; (5) the employer
knew or should have known of the harassment in question and failed to take prompt

11

remedial action.7 Ramsey, 286 F.3d at 268 (citations omitted). In support of the
motion, Defendants argue that DiLeo cannot establish that the harassment complained
of was based on his race. Defendants further contend that DiLeo cannot establish that
the harassment complained of was severe and pervasive enough to affect a term,
condition, or privilege of his employment.
In opposition, DiLeo argues that Italian-American is a race, and that
discrimination against Italian-Americans is actionable as a race claim under 42 U.S.C.
§ 1981. However, a review of DiLeo’s First Amended Complaint reveals that he failed
to allege a claim under 42 U.S.C. § 1981. (Doc. 6.) Further, DiLeo failed to cite, nor
has the Court identified, any binding case law to support the proposition that ItalianAmericans are considered a protected class under Title VII. Thus, DiLeo’s argument
is unavailing.
Even assuming, arguendo, discrimination against Italian-Americans is
actionable as a race claim under Title VII, DiLeo has failed to present sufficient
evidence to create a dispute of material fact as to whether the harassment complained
of affected a term, condition, or privilege of his employment. In opposition to the
motion, DiLeo points to his deposition testimony, in which he testified that Gerald R.
Lane referred to him as “dago” “at least four times” (Doc. 63-4, pp. 16, 18-19, 21);
testified about a sales meeting during which Gerald R. Lane said, “And if y’all think
I’m a racist, well, you’re damn right I am. I’ve earned the right to be.” (Doc. 63-4, p.
7

As noted above, where the harassment is allegedly committed by a supervisor with immediate
authority over the harassed employee, the plaintiff need only satisfy the first four elements of the prima
facie case. Celestine, 266 F.3d at 353.
12

34); testified about one occasion during which Gerald R. Lane told him that “A
runaway slave could sell more cars that you, boy.” (Doc. 63-4, p. 29); and testified about
a sales meeting, during which Gerald R. Lane addressed sales employees as “worthless
motherfuckers” (Doc. 63-4, p. 30).
DiLeo failed to cite, nor has the Court identified, binding case law to support the
conclusion that Gerald R. Lane’s use of the words “runaway slave” or “worthless
motherfuckers” constitutes discrimination against DiLeo on the basis of his race
(Italian-American). Thus, DiLeo’s claim is limited to Gerald R. Lane’s use of the ethnic
slur “dago.”
DiLeo failed to present any evidence that Gerald R. Lane’s use of the ethnic slur
“dago” occurred frequently, was physically threatening or humiliating, or that it
interfered with his work performance. Additionally, DiLeo failed to cite, nor has the
Court identified, binding case law to support the conclusion that Gerald R. Lane’s use
of the of the ethnic slur on four or five occasions over twenty-one days, was sufficiently
severe. Accordingly, each of the factors in the totality of the circumstances test weigh
against a finding that the harassment complained of was objectively offensive.
As noted above, Gerald R. Lane’s use of the ethnic slur “dago” is repulsive.
However, under Fifth Circuit law, Gerald R. Lane’s use of the word on four or five
occasions, without more, is insufficient. Accordingly, the Court finds that DiLeo has
failed to present sufficient evidence to create a dispute of material fact as to whether
the harassment complained of was severe or pervasive enough to affect a term,
condition, or privilege of his employment. Accordingly, Defendants’ request that the
13

Court dismiss DiLeo’s hostile work environment claim on the basis of his race is
GRANTED.
D.

DiLeo’s Constructive Discharge Claim

“Constructive discharge occurs when an employee has quit [his] job under
circumstances that are treated as an involuntary termination of employment.” Haley
v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004). To succeed on his
constructive discharge claim, DiLeo must show “working conditions . . . so intolerable
that a reasonable person in the employee’s position would have felt compelled to
resign.” Hypolite v. City of Houston, 493 Fed. Appx. 597, 607-608 (5th Cir. 2012)
(quoting Nassar v. Univ. of Tex. Sw. Med. Ctr., 674 F.3d 448, 453 (5th Cir. 2012)).
There must be “a greater severity of pervasiveness or harassment than the minimum
required to prove a hostile work environment.” Id. (quoting Dediol v. Best Chevrolet,
Inc., 655 F.3d 435, 444 (5th Cir. 2011)). Therefore, courts in the Fifth Circuit consider
aggravating factors including: (1) demotion; (2) reduction in salary; (3) reduction in job
responsibility; (4) reassignment to menial or degrading work; (5) reassignment to work
under a younger supervisor; (6) badgering harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (7) offers of early retirement or
continued employment on terms less favorable than the employee’s former status. Id.
(citing Nassar, 674 F.3d at 453).
In support of the motion, Defendants argue that each of the factors weighs
against DiLeo’s claim that he was constructively discharged. Defendants further
contend that evidence of badgering, harassment, or humiliation, without more, is
14

insufficient to establish a constructive discharge claim.
In an attempt to circumvent Rule 7.5 of the Local Rules of the United States
District Court for the Middle District of Louisiana, DiLeo seeks to incorporate his
motion for partial summary judgment and memorandum in support thereof into his
memorandum in opposition to the instant motion. (Doc. 60; Doc. 63-3, p. 12.) While
DiLeo may point any evidence in the record, his attempt to incorporate arguments from
previously filed motions or memoranda, and thereby exceed the page limitations set
out in the Local Rules, and shall not be permitted. Accordingly, the Court shall limit
its analysis to the arguments and evidence presented in DiLeo’s memorandum in
opposition to the instant motion.
To survive summary judgment, DiLeo must present evidence of working
conditions even more egregious than those required to establish a hostile working
environment. Hypolite, 493 Fed. Appx. at 607-608. As concluded above, DiLeo has not
presented sufficient evidence of working conditions so egregious as to constitute a
hostile working environment. Further, based on the evidence presented, the only
factor DiLeo can rely on to meet the reasonable employee test is “badgering
harassment, or humiliation by the employer calculated to encourage the employee’s
resignation.” Id. However, DiLeo has failed to point to sufficient evidence to establish
that Gerald R. Lane’s conduct was calculated to encourage his resignation, or that it
was so intolerable that a reasonable employee would feel compelled to resign. Indeed,
DiLeo has failed to cite to any binding case law that would require the Court to
conclude otherwise. Accordingly, Defendants’ request that the Court dismiss DiLeo’s
15

constructive discharge claim is GRANTED.
E.

DiLeo’s Intentional Infliction of Emotional Distress Claim

In Louisiana, to recover for intentional infliction of emotional distress, a plaintiff
must establish: “(1) that the conduct of the defendant was extreme and outrageous; (2)
that the emotional distress suffered by the plaintiff was severe; and (3) that the
defendant desired to inflict severe emotional distress or knew that severe emotional
distress would be certain or substantially certain to result from his conduct.” White v.
Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). In support of the motion, Defendants
argue that DiLeo cannot point to sufficient evidence to establish his claim.
In opposition, DiLeo failed to point the Court to specific evidence to support each
prong of his intentional infliction of emotional distress claim. Instead, DiLeo points
to his deposition, in which he testified as follows:
Q:

Other than the situations you described at the beginning of the
deposition where you had some customers that were not able to
qualify for financing, [are] there any other reasons that you’re
aware of why you did not sell any vehicles during your three weeks
there?

A:

No other reason. I mean, obviously it was - it was - it was difficult
in the mental aspect because you’re thinking all the time this guy
keeps on - Gerry Lane keeps on telling me all this stuff, but as far
as customers, the actual customers, no.

Q:

When you say actual customers and you say no, what do you what do you mean?

A:

Well, what I mean is, the customers, you can’t get approved for a
loan, then you, you know. But yeah, he definitely - it - it affects
you. You know, it does affect you mentally when you got people
talking to you crazy, you know, calling you ethnic slurs and
degrading you, and yeah, it, it does - it does make the job - because
16

its It’s not really a physical[ly] taxing job. You know, you’re not
shoveling dirt. It’s more of mental. You know, you have to be
mentally focused to be able to help the customer and listen to his
need and wants and be able to, you know, make sure you’re putting
your customer [i]n the car that they’re looking for.
...
Q:

All right. Have you experienced any physical problems, actual
physical problems, that you believe were caused by either your
employment with Gerry Lane or any of the things that went on at
Gerry Lane?

A:

Physical problems, no.

Q;

Okay. Have you - Have you suffered any mental problems that you
believe were either caused by or made worse by working at Gerry
Lane Chevrolet?

A:

Yes.

Q:

What mental problems have you experienced?

A:

Well, mental problems, basically just the, you know, having to - it’s
a big deal. You know, . . .

(Doc. 63-4, pp. 32-33, 37) (incomplete sentence in original). DiLeo failed to point to any
other evidence to support his claim.
Even assuming, arguendo, that the evidence in the record establishes that
Gerald R. Lane’s conduct was extreme and outrageous, DiLeo has failed to point the
Court to any evidence whatsoever to establish that the emotional distress suffered by
him rises to the level of severe distress required to support such a claim, or that Gerald
R. Lane desired to inflict severe emotional distress upon DiLeo or knew that severe
emotional distress would be certain or substantially certain to result from his conduct
17